Tuesday, December 2, 2014

Federal court holds that Title VII does not protect the transgendered

LGBT rights continue to dominate headlines. Last month, the 6th Circuit became the first federal appellate court to uphold a state-law same-sex marriage ban, teeing up a likely showdown in the Supreme Court sometime next year. In September, the EEOC filed its first two lawsuits alleging sex discrimination on behalf of transgender employees (here and here).

Now, a federal court in Texas has expressly held that Title VII’s prohibition against sex discrimination does not extend to a transgender employee. Eure v. The Sage Corp. (W.D. Tex. 11/19/14) (h/t: Eric Meyer) involves a truck-driving instructor born a female but who presents as a male. Eure alleged that her employer’s National Project Director, upon seeing her with a student, said, “What is that and who hired that,” adding that Sage did not hire “cross genders.”

The court, however, dismissed Eure’s sex-discrimination claim, concluding that Title VII’s prohibition against sex discrimination does not cover transgender employees.

In some cases, the plaintiffs bringing successful sex stereotyping claims are transgender people, arguing that the discrimination that they have suffered is because their coworkers perceived their behavior or appearance as not “masculine or feminine enough.” However, courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity…. [D]iscrimination based on transgender status is [not] per se gender stereotyping actionable under Title VII.

What lessons can we learn from this case? While many courts have extended Title VII’s protections to address sexual orientation and gender identity based on “sex stereotyping” (i.e., an employee’s failure to conform to traditional male or female gender roles), this issue is far from settled. Because the issue is not clear, we not-so-patiently wait for Congress to step in and address the issue by amending Title VII to make this coverage clear and unambiguous. In the meantime, you, as an employer, are free to decide the issue for your own workplace by drafting (and, more importantly, enforcing) policies of inclusion for LGBT employees.

Disclaimer

This blog is for informational and educational purposes only. It does not constitute legal advice, and is not intended to create an attorney-client relationship. Further, your use of this blog does not create an attorney-client relationship. Online readers should not act upon any information presented on this blog without seeking professional legal counsel. The legal information provided in this blog is general and should not be relied on as legal advice, which I cannot provide without full consideration of all relevant information relating to one's individual situation.

The author apologizes for any factual or other errors in this blog. If you believe that some content is inaccurate, false, disparaging, slanderous, libelous, or defamatory, please post a comment or contact me; I will consider editing existing content, removing that content, or posting a retraction. Information herein is provided on an "as is" or "as available" basis; we make no warranty of any kind to you regarding the information provided and disclaim any liability for damages from use of the blog or its content.